Standard Terms and Conditions of Purchase of Goods and/or services by W & G Foyle Ltd from suppliers

1. Agreement

1.1 This purchase order, together with these terms and conditions, and any attachments and exhibits, statement of work, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between the Customer and the Supplier identified in the Purchase Order.

1.2 The Customer’s submission of the Purchase Order is conditional on the Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall NOT form a part of the Purchase Order, even if the Supplier purports to make its acceptance of the Purchase Order conditional upon the Customer’s agreement to such different or additional terms.

1.3 The Supplier’s electronic or written acceptance or simple acknowledgement of this Purchase Order, however communicated, or commencement of performance constitutes the Supplier’s acceptance of these terms and conditions.

1.4 Notwithstanding the foregoing, if there is a master agreement covering procurement of the Goods or Services described in the Purchase Order in existence between the Supplier and the Customer, (the “MSA”) the terms of such MSA shall prevail over any inconsistent terms herein.

2. Interpretation and Definitions

"Customer” means W & G Foyle Limited ("Foyles") of 203-206 Piccadilly, London W1J 9HD, registered in England with company number 00945131.

“Deliverables” means the deliverables, if any, specified in the Purchase Order (including any SOW) to be delivered on or before the Delivery Date.

“Delivery Date” means the date or dates specified in the Purchase Order by when the Supplier is required to deliver the Goods or the Services.

“Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with Services of authorship throughout the world, including but not limited to copyrights, neighbouring rights, moral and all derivatives thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

“Goods” means tangible goods, specified in the Purchase Order, to be delivered on the Delivery Date.

“Services” means the Deliverables, Goods and Services specified in the Purchase Order, including any SOW.

“SOW” means the statement of work document specifying, without limitation, the scope, objective, and time frame of the Services that the Supplier will perform for the Customer.

“Subcontractor” means a third party performing Services under an agreement (a “Subcontract”) with the Supplier.

“Supplier” means the supplier, whether a company, a partnership, an individual or some other legal person, specified in the Purchase Order.

“Supplier Personnel” means the Supplier’s employees, consultants, agents, independent contractors and Subcontractors.

“Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Services.

3. Delivery and Packaging

3.1 Unless the Customer expressly issues a contrary instruction, the Supplier will deliver all Goods and Services to the Customer at the Delivery Address set forth in the Purchase Order. The Supplier assumes responsibility for all packaging, shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance.

3.2 Time is of the essence in the Supplier’s performance of its obligations set out in the Purchase Order. The Supplier will immediately notify the Customer in writing if the Supplier’s performance under the Purchase Order is delayed or is likely to be delayed. The Customer’s acceptance of the Supplier’s notice will not constitute a waiver by the Customer of any of the Supplier’s obligations.

3.3 The Supplier will preserve, pack, package and handle the Deliverables and Goods so as to protect the Deliverables and Goods from loss or damage and in accordance with best commercial practices in the absence of any specifications the Customer may provide.

3.4 Without limiting the foregoing, the Supplier shall observe the requirements of any local laws and regulations relating to hazardous substances or mixtures, including, without limitation, with respect to its accompanying information, classification, packing, labelling, reporting, carriage and disposal.

3.5 The Supplier shall include, with each delivery of Goods, a packing list identifying the Purchase Order number, a description and the quantity of each of the Goods, and the date of shipment.

3.6 Where required by the Customer, the Supplier shall remove from the Customer’s premises all packaging and temporary fixings necessary for the delivery of the Goods or performance of the Services and leave the delivery area and all of the Customer premises clear of waste.

4. Acceptance and Inspection

4.1 The Customer may reject any or all of the Goods or Services delivered after the Delivery Date or Goods OR Services which do not conform to the applicable requirements stated in the Purchase Order, the SOW, or both, within fifteen (15) business days of the Supplier’s delivery of the Goods or Services.

4.2 At the Customer’s option, the Customer may:

i. return the late or non-conforming Goods or Services to Supplier for a refund or credit; or

ii. require the Supplier to replace the late or non-conforming Goods or Services; or

iii. allow the Supplier at its own cost to repair the non-conforming Goods or complete the non performing Services so that it meets the requirements stated in the Purchase Order, the SOW or both.

As an alternative to (i) to (iii) inclusive, the Customer may accept the non-conforming Goods or Services on condition that the Supplier provides a refund or credit in an amount the Customer reasonably determines to represent the diminished value of the non-conforming Goods or Services.

4.3 The Customer’s payment to the Supplier for Goods or Services prior to the Customer’s rejection of such Goods or Services as non-conforming will not be deemed an acceptance by the Customer.

4.4 Customer will hold any Goods or Services rejected under this Purchase Order at the Supplier’s risk and expense, including storage charges, while awaiting the Supplier’s return delivery or shipping instructions. Supplier will bear all return delivery or shipping charges, including without limitation, any insurance charges that the Customer incurs on the Supplier’s behalf.

5. Title and Risk

5.1 Risk of loss for any Deliverables and Goods shall not pass to the Customer until they have been accepted in accordance with clause 4.

5.2 Title in any Deliverables and Goods shall pass to the Customer upon the date of the Purchase Order.

5.3 Where the Supplier provides maintenance or repair Services on the Customer’s goods, the Supplier shall identify such goods as the property of the Customer and agrees that title to such goods shall remain with Customer at all times.

6. Price and Taxes

Unless otherwise specified in the Purchase Order, the price for the Goods and/or Services includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges.

7. Invoicing

Upon delivery of the Goods and/or completion of the Services, the Supplier shall provide to the Customer a valid invoice, including the following information:

i. a reference to this Purchase Order and, if applicable, the relevant MSA;

ii. a detailed description of the delivered Goods or performed Services, including the date of delivery and/or period of Services in respect of which the invoice relates and the relevant quantity;

iii. an individual reference number for the Customer to quote with remittance of payment;

iv. the price relating to the Goods and/or Services, broken down to reflect the same price components set out in the Purchase Order, with taxes and other charges shown separately from the price.

7.1 The Supplier shall promptly and upon request provide the Customer with all relevant records to enable the Customer to verify the amount set out in any invoice.

7.2 The Customer may withhold approval and/or money due to the Supplier under this Purchase Order if the Goods or Services (or any part or parts of them) are defective.

8. Payment Terms

The Customer shall pay the Supplier the price within 30 days of the date the invoice was issued by the Supplier.

9. Variations

9.1 For the purpose of this Clause 9, a “Variation” means a variation which the Customer makes to the general scope of this Purchase Order, the applicable SOW or both.

9.2 The Customer, by written notice (“Variation Notice”), may make Variations in accordance with this Clause 9.

9.3 If the Supplier claims that the Customer has made a Variation to the cost of or time for performance of the Goods or Services for which the Customer has not issued a Variation Notice, the Supplier will promptly notify the Customer in writing of the alleged Variation, providing :

i. a description of the action or inaction alleged to have caused the Variation;

ii. a genuine and fair estimate of the adjustment that would be required for the Supplier to perform the variations as if a Variation Notice had been served; and

iii. a date no less than twenty (20) days from the date of notice by which the Customer must respond to the Supplier’s notice by serving in good faith a Variation Notice failing which the Supplier may proceed with the Services unchanged.

9.4 The parties shall negotiate an amendment to the applicable Purchase Order or SOW to incorporate a Variation Notice, whether served under Clause 9.2 or 9.3 (iii) providing for an equitable adjustment to the price, time for performance or both.

10. Representations and Warranties

10.1 The Supplier represents and warrants that

i. it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order;

ii. the Services, and Customer’s use of the Services, do not and will not infringe any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law;

iii. the Services conform or will confirm to the Customer’s specifications, the Supplier’s quotation or proposal, and the Supplier’s brochures or catalogues, and if none of the foregoing is applicable, then such Services are suitable for the intended use;

iv. the Goods conform to the description, specifications and service levels set out in the Purchase Order;

v. the Goods comply with all applicable quality standards and, to the extent not covered by the foregoing, all applicable legislation;

vi. the Goods are fit for the purpose for which goods of the same kind are commonly supplied or bought as well as for any other purpose which the Customer specifies;

vii. the Goods are free from material defects in design, material and workmanship.

10.2 The Customer warrants and represents to the Supplier that it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order.

11. Assignment and Subcontracting

11.1 The Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without the Customer’s prior written consent.

11.2 The Supplier may not subcontract any of its rights or obligations under the Purchase Order without the Customer’s prior written consent. If the Customer consents to the use of a Subcontractor, the Supplier will: (i) remain liable for the performance of all subcontracted obligations; (ii) indemnify the Customer for all damages and costs of any kind, subject to the limitations in Clause 15 (Indemnification), incurred by Customer or any third party and caused by the acts and omissions of the Supplier or its Subcontractors; and (iii) make all payments to its Subcontractors. If the Supplier fails to pay a Subcontractor for Services performed on time or at all, the Customer will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to the Supplier by any amount paid to the Subcontractor. The Supplier will defend, indemnify and hold the Customer harmless for all damages and costs of any kind, without limitation, incurred by the Customer and caused by the Supplier’s failure to pay a Subcontractor.

11.3 To the extent allowed by applicable law, no person who is not a party to a Purchase Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom or otherwise.

12. Term and Termination

12.1 The Purchase Order will remain in effect with respect to any SOW already issued prior to expiration of the term of the Purchase Order until such SOW is either terminated or the Goods or Services are delivered and/or completed (as the case may be) and accepted.

12.2 The Customer may terminate this Purchase Order, any SOW, or both at any time, for no reason or for any reason, upon thirty (30) days written notice to the Supplier.

12.3 Upon receipt of notice of such termination, the Supplier will inform the Customer of the extent to which it has completed the performance of its obligations under the Purchase Order (and SOW if applicable) as of the date of the notice and the Supplier will collect and deliver to the Customer whatever Goods or Services then exist or exists. The Customer will pay the Supplier for all Goods delivered and accepted as well as all Services performed and accepted before the effective date of the termination, provided that the Customer will not be obliged to pay any more than the payment that would have become due had the Supplier completed the performance of its obligations under the Purchase Order (and SOW if applicable) and the Customer had accepted the Goods or Services. The Customer will have no further payment obligation in connection with any termination.

12.4 Either party may terminate the Purchase Order and any SOW (or either of them) immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed to either party or its property; (ii) either party makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any insolvency or debtor's relief law, if such proceedings are not dismissed within sixty (60) days; or (iv) either party ceases or threatens to cease to carry on business in the ordinary course.

12.5 Either party may terminate the Purchase Order and any SOW (or either of them), immediately by delivering written notice to the other party for any material breach not remedied within thirty (30) days of receipt of notice of the breach. The Customer shall have no further payment obligation to Supplier under any terminated SOW or Purchase Order if Customer terminates the Purchase Order or SOW under this Clause 12.5.

12.6 Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order or SOW shall survive the expiration or termination of the Purchase Order or SOW.

13 Confidential Information and Publicity

The Supplier shall obtain the Customer’s written consent prior to any publication, notification, presentation, public announcement, or press release concerning its relationship as a supplier to the Customer.

14. Indemnity

14.1 As used in this Clause 14, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”) may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.

14.2 The Supplier shall defend, indemnify and hold the Customer harmless from and against any and all Claims as incurred, arising out of or in connection with any (i) act or omission of the Supplier (including its Subcontractors) in the performance of the Services; or (ii) any infringement of a third party’s Intellectual Property Rights or any other rights.

14.3 Each party will indemnify and hold the other party harmless from and against any and all Claims, as incurred, arising out of any negligent or wilful acts or omissions of the Indemnifying Party which results in personal injury (including death) or damage to tangible property (not including lost or damaged data).

14.4 The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim and permit the Indemnifying Party to control the defence, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ legal advisers at its own expense to assist it with respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnifying Party’s behalf.

14.5 If a third party interferes with the Customer’s use of any Goods or Services, then in addition to the Supplier’s obligations under Clause 14.2, the Supplier will use its best endeavours to (i) obtain any licences necessary to permit the Customer to continue to use the Goods or Services; (ii) replace or modify the Goods or Services as necessary to permit the Customer to continue to use of the Goods or Services.

14.6 Nothing in this Clause shall limit any other remedy of the parties.

15. Liability

15.1 Notwithstanding anything else in the Purchase Order or otherwise, the Customer will not be liable to the Supplier with respect to the subject matter of the Purchase Order under any contract, negligence, strict liability or other legal or equitable theory for any amounts in excess in the amount the Customer paid to the Supplier in the six months preceding the event or circumstance giving rise to such liability.

15.2 In no event will the Customer be liable to the Supplier for any incidental, indirect, special, consequential damages or loss of profits arising out of, or in connection with, the Purchase Order, whether or not the Customer was advised of the possibility of such damage.

15.3 The limitations will apply notwithstanding any failure of essential purpose of any limited remedy provided herein. Nothing in the Purchase Order limits either party's liability for bodily injury of a person, death, or physical damage to property or any liability which cannot be excluded under applicable law.

16. Insurance

The Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect the Customer in the event of such injury or damage, and will ensure that it remains in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. The Supplier will further maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to the Supplier in the jurisdiction or jurisdictions in which the Supplier’s operations take place.

17. General

17.1 The Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order.

17.2 Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated in the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery; (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail.

17.3 If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will be resolved as follows:

i. A conflict between the terms of the Purchase Order and those set forth in an exhibit or hyperlink will be resolved in favour of the Purchase Order.

ii. A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favour of the SOW.

iii. A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favour of the SOW.

17.4 If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.

17.5 A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order.

18. Governing Law

18.1 The validity, interpretation, and performance of this Purchase Order will be controlled by and construed under the laws of England and Wales.

18.2 The English Courts shall have exclusive jurisdiction over any claim arising under this Purchase Order.

Date: September 2019